Stuart v. Doyle

• Decision Date: 21 February 1921
• Citation: 95 Conn. 732,112 A. 653
• Court: Connecticut Supreme Court
• Parties: STUART v. DOYLE et al. (two cases.)

112 A. 653

95 Conn. 732

STUART v. DOYLE et al. (two cases.)

Supreme Court of Errors of Connecticut.

February 21, 1921

Appeal from Superior Court, Hartford County; Gardiner Greene, Judge.

Action by John C. Stuart against John D. Doyle and others to recover damages for injuries to plaintiff's automobile and for sums expended in the care of his wife, Eleanor M. Stuart injured in a collision with an automobile driven by and belonging to John D. Doyle, alleged to have been caused by the negligence of John D. Doyle and by the negligence of the defendant Charles O'Neil, Jr., an owner and driver of an automobile, who was alleged to have been the servant of the defendant J. E. Shepard, and then acting as such servant also action by Eleanor M. Stuart against the same defendants to recover damages for injuries to her person in such collision. Verdict for the plaintiff John C. Stuart to recover $686.27, and for the plaintiff Eleanor M. Stuart to recover $3,500, against John D. Doyle and J. E. Shepard. Verdict for the defendant Charles O'Neil, Jr. John D Doyle and J. E. Shepard appeal. No error.

Note.-The anomaly of a verdict against the defendant Shepard, the master, because of the negligence of O'Neil, his servant, accompanied by a verdict in the same action in favor of O'Neil, arises from the fact that the plaintiffs asked for no verdict against O'Neil, if the jury found that Shepard was liable.

A. Storrs Campbell, of Hartford, for appellant Doyle.

Lewis Sperry and Alexander W. Creedon, both of Hartford, for appellant Shepard.

Lawrence A. Howard, of Hartford, for appellees.

CURTIS, J.

The error assigned in each case is the refusal of the trial court to set aside the verdict rendered as contrary to and against the evidence.

The court filed findings of certain undisputed facts, which are in substance as follows:

On August 21, 1918, the plaintiff John C. Stuart, accompanied by his wife the plaintiff Eleanor M. Stuart, was driving his automobile northerly from East Hartford to South Windsor, Conn. Stuart's automobile was following the automobile of the defendant O'Neil. The defendant Doyle was driving an automobile in a southerly direction on the highway.

At a point on the road near the Podunk River bridge so-called, the car of the defendant O'Neil and the car of the defendant Doyle collided. The car of the defendant Doyle then proceeded in an easterly direction across the highway and collided with Stuart's automobile. The defendant O'Neil, at the time of the accident, had in his automobile three laborers, whom he was carrying to the farm of the defendant Shepard.

The testimony of O'Neil and Shepard was the only evidence produced to establish the question of the agency of O'Neil and the scope of his authority or employment. The evidence presented is made a part of the record. In each complaint the negligence complained of was alleged as follows:

" Said injuries were caused by the negligence of the defendant O'Neil in failing to give the defendant Doyle one-half of the traveled way and a fair opportunity to pass and in negligently colliding with him, and by the negligence of the defendant Doyle in failing to avoid the defendant O'Neil and in negligently colliding with him and in negligently allowing his own car to spring across the road into the car in which the plaintiff was riding and in driving his own car at an excessive and dangerous rate of speed. During all the time mentioned above the defendant O'Neil was engaged within the scope of his employment as a servant and agent of the defendant J. E. Shepard."

As the reasons of appeal do not involve the charge of the court, we are to assume that the charge was correct, and that the verdict was in accord with the charge. The general verdict against Doyle and Shepard import the finding by the jury that the collision of the O'Neil and Doyle automobiles was caused by the concurrent negligence of each, and that the collision of the Doyle automobile with the Stuart automobile was caused by the prior collision of the O'Neil and Doyle automobiles. The only negligence of Doyle alleged in the complaint which could be involved in a collision between the Doyle and O'Neil cars caused by their concurrent negligence was his negligence " in failing to avoid the defendant O'Neil and *** in driving his own car at an excessive and dangerous rate of speed."

The jury having found that the collision occurred through the concurrent negligence of O'Neil and Doyle, the verdict imports that the jury found that both grounds of negligence alleged against Doyle, which would be involved in a finding of concurrent negligence, were proved. Aarenson v. New Haven, 110 A. 872. These verdicts, therefore, import the finding by the jury: First, that Doyle in the exercise of due care as his automobile approached that of O'Neil could have avoided colliding with it; and, second, that as he drove his automobile before and at the time of his collision with O'Neil's automobile his speed was so great as to be unreasonable, considering the time, place, and use of the highway, and such as to prevent him in the use of reasonable care from controlling his automobile so as to avoid a collision with O'Neil's automobile.

Under the conflicting evidence the jury could reasonably find that the collision between the automobiles of O'Neil and Doyle was caused by the negligence of O'Neil in failing to give the defendant Doyle one-half of the traveled way and a fair opportunity to pass and by the concurrent negligence of Doyle in failing to avoid the collision by the exercise of due care in operating his automobile, and by his negligence in driving his automobile at a speed so great as to be unreasonable considering the time, place and use of the highway, and at such speed as to prevent him in the use of reasonable care from controlling his automobile so as to avoid a collision with O'Neil's automobile.

O'Neil testified in substance as to Doyle's driving as their automobiles approached:

Doyle came toward me unduly fast; he came towards me very fast. He was not coming at a safe speed; he was going nearer 30 miles an hour than 15.

Under this evidence, taken in connection with the force that Doyle's automobile struck Stuart's automobile after Doyle's collision with O'Neil, the jury could have reasonably found that Doyle was guilty of concurrent negligence with O'Neil in causing their collision and the subsequent collision of the Doyle and Stuart automobiles. There was no error, therefore, in the denial of Doyle's motion to set aside the verdict.

We will now turn to the appeal of Shepard. As stated above, under the evidence the jury could reasonably have found that O'Neil was negligent, and that such negligence was a proximate cause of the collision of his automobile with that of Doyle and of Doyle's automobile with that of Stuart. Shepard urges that, even if O'Neil caused the collision with Doyle by his negligent driving, yet that he (Shepard) is in no way responsible for the collision, because upon the evidence presented O'Neil at the time of said collision could not have been reasonably found to have been his employee, acting within the scope of his authority or employment. The only testimony presented by the plaintiff as to this feature of the cases was that of the defendant Shepard and that of the defendant O'Neil.

Shepard's testimony was in...